Duty of Care

Charles Mynors

The liabilities of
owners, professionals and contractors responsible for the care of historic
buildings

Those who own or live
in historic buildings or who carry out works to them have a duty to care
for them, and to keep their buildings in good condition as far as possible.
True? Well, not exactly. Such people may have a moral duty along those
lines, and enthusiastic conservation officers with low grant budgets may
encourage them to believe that they have a legal duty towards their buildings,
but the truth is that the duties imposed by the law are relatively limited.

LIABILITY IN NEGLIGENCE

First, everyone, professional
or layperson, owes a general duty of care to all those likely to be affected
by his or her actions (or inaction). This has led to several categories
of duties relevant to works to buildings. A breach of such duty, if it
leads to harm, may give rise to a claim in negligence.

OCCUPIERS'
LIABILITY

There is a duty (under
the Occupiers’ Liability Acts) laid upon the occupiers of all buildings
to take ‘such care as in all the circumstances is reasonable’ to see that
visitors (and, to some extent, even trespassers) are reasonably safe.
That will imply a duty to carry out basic repairs, and will be particularly
relevant in the case of buildings at risk. However, note that the obligation
is only to take ‘reasonable’ care, which would imply that both the nature
of the building and the means of the owner might be relevant in considering
what should be done in any particular case. This duty is also unlikely
to be a problem for owners of ordinary listed buildings that are not dangerous
but merely in an ordinary state of disrepair. Note too that the duty under
the 1957 Act does not extend to ensuring the safety of professionals working
on the property – they are assumed to be able to look after themselves.

PROFESSIONALS'
AND ARTISANS' NEGLIGENCE

There is a common law
duty on those professionals, contractors and craftsmen, when working on
any project, to take reasonable skill and care to achieve the task for
which they have been hired. But what is reasonable? As one textbook puts
it, 'in practice, different professions enjoy varying degrees of success.
It is not surprising if a litigating solicitor says that some of his clients
lose their cases, or if a doctor says that some of his patients do not
recover: but it is most surprising if an engineer says that some of the
bridges which he designs fall down, or if a conveyancing solicitor says
that some of his clients do not acquire good title to their properties'.
Thus, on the whole, it is not enough for those who are engaged to carry
out works to buildings, historic or otherwise to carry out the work agreed,
they must also do it properly.

However, there are
limits to how far the courts will intervene. For one thing, the duty owed
by professionals and others is primarily to their clients, and not to
the building. Further, the duty is to take reasonable care to complete
their appointed task – whether that be preparing a design for the alteration
to a building, or carrying out the actual works to implement that design
– properly, in the light of the standards of those operating in the same
field. It follows that no one is under a legal duty to carry out work
better than all their rivals: a moment’s thought will show that that would
be wholly unworkable since, by definition, at least half of those operating
in any field will be less competent and less inspired than the average.

On the other hand,
where a professional or craftsman holds himself or herself out to be a
specialist – either in historic buildings generally or in relation to
some particular aspect of conservation work (such as, say, the restoration
of historic fabrics, or the integration of modern computer services into
old buildings) – it is perfectly proper for clients to expect a level
of expertise greater than that of a general building professional. But
the same principle still applies; a historic paint expert is expected
to know more than a general decorator, but not more than other historic
paint specialists.

LIABILITY UNDER A CONTRACT

Most, if not all, work
to historic buildings will be the subject of a contract. This may be a
simple oral agreement (such as 'Will you pop in to have a look at the
crack in my kitchen wall?') or a written contract and specification comprising
thick specification documents and numerous drawings. Either way, breach
of a term of the contract may lead to a successful claim for damages.
The matter was put thus by a judge:

If I employ a carpenter
to supply and put up a good quality oak shelf for me, the acceptance by
him of that employment involves the assumption of a number of contractual
duties. He must supply wood of an adequate quality, and it must be oak.
He must fix the shelf. And he must carry out the fashioning and fixing
with the reasonable care and skill which I am entitled to expect of a
skilled craftsmen. If he fixes the brackets but fails to supply the shelf,
or if he supplies and fixes a shelf of unseasoned pine, my complaint against
him is not that he has failed to exercise reasonable care in carrying
out the work, but that he has failed to supply what was contracted for.

The same applies to
any task in the course of the building process – again, whether by professionals
or artisans. It is therefore important to specify works carefully when
entering into a contract. And if the building concerned is a historic
building, correspondingly greater care needs to be taken – with the drafting
of the contract as much as with the carrying out of the actual works themselves.
In particular, where a project involves opening up an existing building,
it is not always possible to predict with any accuracy what will turn
up. So the specification must take account of all (or at least most) of
the likely possibilities if it is to be of any use.

DUTY UNDER STATUTE

Other than the duties
under the Occupiers’ Liability Act already mentioned, there are few if
any duties under statute. The Planning (Listed Buildings and Conservation
Areas) Act merely states that a planning authority has the power to intervene
to carry out urgent works to keep the wind and weather out. It may then
seek to recover the cost of such works from the owner. However, a planning
authority will often choose to wait before taking any action in the hope
that the property changes hands.

The service of a repairs
notice is another option, but only if the authority is prepared to buy
the property – or is at least prepared to think of doing so. In effect,
issuing a repairs notice tells the owner that the authority considers
that it is necessary to carry out certain works, specified in a schedule
to the notice, if the building is to be preserved. That in turn enables
the owner to see what he has to do if he is to avoid the property being
compulsorily purchased and sold on to someone who will do the works.

Despite these two
measures, there is no general duty, either under statute or at common
law, on the owner or occupier of a building to do anything to stop it
falling into a state of advanced decay – although that may expose the
owner to the risk of being served a building repairs notice and, ultimately,
compulsory purchase. In some (but not all) cases allowing a building to
decay may also be unwise commercially. In other words, although there
is much encouragement from central government to keep a listed building
in good repair, there is no actual duty on owners to do so. Here, too,
it would be surprising if the law were otherwise, since it is difficult
to see how any such duty would be enforced where a person was unable or
unwilling to comply.

NEED FOR SPECIAL CONSENT

One thing of which
everyone should be aware is the need for consent for works to historic
buildings. In simple terms, planning permission is needed for any building
operations – other than those affecting just the interior of a building
– but for many schemes which impact on the historic environment, such
permission may, indeed frequently is, granted by the General Permitted
Development Order. Listed building consent will be needed for any works,
exterior or interior, that affect the character of a listed building,
and conservation area consent for the demolition of all or the significant
bulk of a building in a conservation area. Works to particular categories
of buildings may need other special forms of authorisation – such as a
faculty for almost any works to a Church of England church. And of course
most works will need to be approved under the Building Regulations.

It is undoubtedly
part of the job of a professional running a building contract to know
what consents are required (and to seek advice in cases of doubt); and
to obtain such consents as are needed, through the appropriate channels.
Further, as a large project proceeds, the design may change. Often these
changes will be quite minor, but if they are more significant, it will
be necessary to consult the appropriate authorities promptly, to see whether
the consents already obtained can be modified, or whether new applications
are required.

The sanction for failure
in this regard can be severe. Firstly (in terms of penalty), contractors
and consultants face the possibility of being sued by the client for negligence
(particularly where failure to obtain the necessary consents leads to
major delay or the need for expensive redesign). Secondly, failure to
obtain listed building or conservation area consent, or to comply with
the conditions attached to such consent, is a criminal offence; and the
planning authority is entitled to prosecute the contractors who actually
carried out the works, and the professionals who inspired them, as well
as or in preference to the owner of the building. All of them will be
equally liable to conviction, either for the principal offence or for
‘aiding and abetting’. Thirdly, where professionals are found guilty of
inappropriate tampering with historic buildings, the relevant professional
bodies (the RICS or RIBA for example) are likely to be distinctly unimpressed.

BUYING AND SELLING HISTORIC BUILDINGS

Finally, when a property
changes hands, the usual rule applies: let the buyer beware. In the case
of historic or otherwise non-standard properties, this rule is even more
important. So those contemplating such a purchase should be very careful
to ensure that there are no hidden surprises, or they may have very large
repair bills the cost of which could have perhaps been deducted (at least
in part) from the purchase price.

For example, where
works were in the past done without consent, the local authority may correctly
issue an enforcement notice requiring a subsequent owner to carry out
the necessary restoration. So when buying a property that has clearly
been the subject of alterations or from which original features may have
been removed, make sure that consent was obtained – and if it was not,
find out what the planning authority wants to be done about it and, again,
deduct the cost of those works from the price offered.

Failure by those responsible
for the conveyancing to spot such problems may lead to them being sued
for negligence. In short, the same problems apply to historic buildings
as to others, but sometimes in a more acute manner.

Listed
Building Prosecutions Survey

Bob
Kindred

Recent published
research by the Office of the Deputy Prime Minister and English
Heritage (through the State of the Historic Environment Report)
suggests that the level of enforcement of planning and listed building
controls is very low both in terms of priorities and activity. This
is despite government advice in PPG15 sending out two clear messages:

'Once lost,
listed buildings cannot be replaced; and they can be robbed of their
special interest as surely by unsuitable alteration as by outright
demolition. They represent a finite resource and an irreplaceable
asset. This reflects the great importance to society of protecting
listed buildings from unnecessary demolition and from unsuitable
and insensitive alteration and should be the prime consideration
for authorities…'

'Unauthorised
work may often destroy historic fabric, the special interest of
which cannot be restored by enforcement. Moreover, well publicised
successful prosecutions can provide a valuable deterrent to wilful
damage to, or destruction of, listed buildings, and it is the Secretary
of State’s policy to encourage proceedings where it is considered
that a good case can be sustained.'

Those carrying
out works to historic buildings (be they owners, agents or contractors)
need to reminded that unauthorised works, damage or failure to comply
with a Listed Building Enforcement Notice is a criminal offence
and can result in a fine of up to £20,000 per offence in the Magistrates
Court with more serious sentences in the Crown Court, as well as
having to meet the local authority’s costs.

For some years
the Institute of Historic Building Conservation has been maintaining
a national database of listed building prosecution fines and is
always interested to hear of cases, irrespective of whether these
successfully imposed significant penalties or where only a small
fine or conditional discharge was levied. The data is helpful in
building up a picture of the level of activity, assisting better
practice and encouraging more consistency in sentencing, and encouraging
more authorities to consider prosecution where appropriate. Details
of cases should be forwarded by e-mail to bob.kindred@ipswich.gov.uk.

BOB
KINDRED MBE BA IHBC MRTPI is Borough Conservation Officer
for Ipswich Borough Council and a Heritage Advisor to the Local
Government Association and Vice-Chair of the IHBC Law &
Practice Committee.

This
article is reproduced from The Building Conservation Directory, 2003

Update, September 2012
Recently there have been several significant changes in UK government planning guidance and policy.

In England Planning Policy Guidance Note 15: Conservation of the Historic Environment (PPG15, 1994) and Planning Policy Guidance Note 16: Archaeology and Planning (PPG16, 1990) have been cancelled by the Government. Initially replaced by Planning Policy Statement 5 (PPS5) in March 2010, current policy guidance for England is now given in the National Planning Policy Framework (NPPF) issued in March 2012. Further guidance is proposed, but in the meantime the guide which originally accompanied PPS5 remains in force - see PPS5 Historic Environment Planning Practice Guide.

In Scotland the principal statutory guidance on policy is now Scottish historic environment policy (SHEP), which was published in December 2011, with subsidiary guidance given in Historic Scotland’s Managing Change leaflets. These documents together replace the Memorandum of Guidance on Listed Buildings and Conservation Areas published in 1998.

Author

CHARLES MYNORS FRTPI MRICS IHBC Barrister was a
conservation officer before going to the Bar. He now has a
successful practice (in the Chambers of Robin Purchas QC
in the Temple) giving advice and appearing at inquiries
and in court. His clients include local authorities and
English Heritage. The third
edition of his standard textbook, Listed Buildings,
Conservation Areas and Monuments, was recently
reprinted. His most recent book is The Law of Trees,
Forests and Hedgerows. He is a well-known speaker
at professional conferences, and is Chancellor of the
Diocese of Worcester.